Central Administrative Tribunal - Kolkata
Buddhadev Senapati vs Radhey Shyam & Ors on 18 April, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
Date of order: 48: 64,2028
Coram :Hon'ble Mr. Jayesh V Bhairavia, Judicial Member
Hon'ble Mr. Suchiitto Kumar Das, Administrative Member
In the matter of:-
Contempt Petitions : GROUP - |
(Arising out of alleged non-compliance of order dated 26.12.2015)
1. C.P./187/2016 (Kolkata) arising out of O.A./2020/2015, M.A./303/2019
M.A./187/2022, M.A./252/2022
BUDDHADEV SENAPATLI.....VS...0000 RADHEY SHYAM & ORS (S.E.R.)
MR B BHUSHAN MR S SAMANTA.........0+00 Counsel for the applicants
MR R HALDER.......c.cccecssesconececorsrecesceteresssesens Counsel for the respondents
2. C.P./142/2016 (Kolkata) arising out of O.A./1984/2015
DHRUBA NARAYAN MAHAPATRA......VS......... RADHEY SHYAM {S.E.R.)}
MR B BHUSHAN ........-ceeccceteceetteeestsereseeceenes Counsel for the applicants
MR R HALDER............cceccecssscssescesennsressessesnees Counsel for the respondents
3. C.P./143/2016 (Kolkata) arising out of 0.A./1969/2015
SOUMYA RAJAN JANA........ VS.ue00 RADHEY SHYAM & ORS {S.E.R.)
MR B BHUSHAN ...... cceeceesenceereenenrererrereeses Counsel for the applicants
MIR R HALDER........cesesessccsetesceeeerensateeeeseveeees Counsel for the respondents
4. C.P,/144/2016 (Kolkata) arising out of 0.A./1987/2015
RAMAPADA DAS....VS..se00 RADHEY SHYAM & ORS (S.E.R.)
MR B BHUSHAN uu... seeeeccseeseecseserneteeers Counsel for the applicants
MR BB CHATTERJEE MR R HALDER.......08 Counsel for the respondent
5. C.P./145/2016 (Kolkata) arising out of O.A./1990/2015, M.A./339/2022
PRAVAKAR MONDAL......VS..ss00 RADHEY SHYAM & ORS (S.E.R.)
MIR B BHUSHAN ..cessiessecsssteceesesteecerssscersne ners Counsel for the applicants
MR BB CHATTERJEE MR R HALDER..........- Counsel for the respondent
6. C.P./146/2016 (Kolkata) arising out of O.A./1985/2015
TAPAN KR PRADHAN......VS....... RADHEY SHYAM & ORS (S.E.R.)
MR B BHUSHAN ...... ce ececeeeeesestsnerressesnecsnenenes Counsel for the applicants
MR R HALDER.....esccccccsseseerssseenreseeseeesensnsenees Counsel for the respondents
7. C.P./147/2016 (Kolkata) arising out of 0.A./1970/2015
MOURANI MAL........VS.......» RADHEY SHYAM & ORS (S.E.R.)
IMIR B BHUSHAN o..ceceserececseeeeecseceneerccenescuneassasonee Counsel for the applicants
MS D GHOSH DASTIDARMR R HALDER........... Counsel for the respondent
8. C.P./148/2016 (Kolkata) arising out of O.A./1988/2045
MANI SHANKAR KAR... VS..ccse00 RADHEY SHYAM & ORS (S.E.R.)
MR B BHUSHAN ......sceceeeeescstsnssseresetsssreneees Counsel for the applicants
MR R HALDER. A. ssssccescessccereessessersnesneersseesnens Counsel for the respondents
9, C.P./149/2016 (Kolkata) arising out of O.A./1991/2015
AMIT KR MONDAL......VS....s00 RADHEY SHYAM & ORS (S.E.R.)
MR B BHUSHAN uu... sesssssenserenesceteteereeeeeees Counsel for the applicants
MR R HALDER..u.....-sesccesesersesectecareessneesseeacens Counsel for the respondents
10. C.P./150/2016 (Kolkata) arising out of 0.A./1989/2015
BUDDHADEV BERA......VS.esssees RADHEY SHYAM & ORS (S.E.R.)
MR B BHUSHAN .....cceecseseeeereeeseseentsenernents Counsel for the applicants
MR R HALDER......c.seessessscesscreoeceesenerenssssnneess Counsel for the respondents
11. C.P./151/2016 (Kolkata) arising out of 0.A./1968/2015
RAJIB KR GIRL... VSsccae RADHEY SHYAM & ORS (S.E.R.}
MR B BHUSHAN ....ssseeessesseseenssreesereeeserseenees Counsel for the applicants
MR R HALDER........-csssonsescerensceersrseneresesernenens Counsel for the respondents
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12. C.P./152/2016 (Kolkata) arising out of 0.A./1967/2015
ASHOK KR MONDAL......VS...cee RADHEY SHYAM & ORS (S.E.R.)
MR B BHUSHAN ....cesesssccescesceceeseecesenssnseeeees Counse! for the applicants
MIR R HALDER.......ssscessecseceeseeseesssnsesesconeaneeses Counsel for the respondents
13, C.P./153/2016 (Kolkata) arising out of 0.A./1986/2015
SAMIRAN RAJ PANDIT......VS...000 00 RADHEY SHYAM & ORS (S.E.R.)
MR B BHUSHAN ......-csccssssesssssesreesensosentseasersesensts Counsel for the applicants
MS D GHOSH DASTIDARMR R HALDER........... Counsel for the respondents
14. C.P./154/2016 (Kolkata) arising out of 0.A./1965/2015
NARU GOPAL GIRI......VS........ RADHEY SHYAM & ORS (S.E.R.)
MR B BHUSHAN .....eseeesessscceesesseeeeeenenesssessoenseees Counsel for the applicants
MS D GHOSH DASTIDARMR R HALDER.........+ Counsel for the respondents
15. C.P./157/2016 (Kolkata) arising out of 0.A./1618/2015
DINESH KHALUA......VS... 0+ RADHEY SHYAM & ORS (S.E.R.)
MR B BHUSHAN nc escccrssssssesccerenesetensneraseenees Counsel for the applicants
MR R HALDER,.. sess ceeesessccessonseeserssscnrusnteseen Counsel for the respondents
16. C.P./180/2016 (Kolkata) arising out of 0.A./1619/2015
BHRIGURAM GIRI......VS......06 RADHEY SHYAM & ORS ({S.E.R.)
MR B BHUSHAN .......ccccceeceesnssscseerenseerneretnerenasoes Counsel for the applicants
MS D GHOSH DASTIDARMR R HALDER........... Counsel for the respondents
47. C.P./181/2016 (Kolkata) arising out of O.A./1966/2015
ASIT KUMAR PONDIT......VS. RADHEY SHYAM & ORS (S.E.R.)
MR B BHUSHAN ....cssssssessestessseeesseesseenenerses Counsel for the applicants
MIR R HALDER.......cecssessesetentersresenerecenereestey Counsel for the respondents
18. C.P./182/2016 (Kolkata) arising out of 0.A./2023/2015
RAJU SANA... VScccccrens RADHEY SHYAM & ORS (S.E.R.)
MR B BHUSHAN .....ssscecsssescesnessssrecencersnsenes Counsel for the applicants
MR R HALDER......ccccececesessssssrsescesscsssnenenseceens Counsel for the respondents
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19.
20.
21.
22.
23.
24.
25.
C.P./183/2016 (Kolkata) arising out of 0.A./2021/2015
BHASKAR BERA......VS........ RADHEY SHYAM & ORS (S.E.R.)
MR B BHUSHAN .....scecssssssreseeeensercneserenertsterssenens Counsel for the applicants
MS D GHOSH DASTIDARMR R HALDER........... Counsel for the respondents
C.P./184/2016 {Koikata) arising out of 0.A./2025/2015
BUDDHADEV MONDAL......VS..00 RADHEY SHYAM & ORS (S.E.R.)
MR B BHUSHAN ......... ssscessssseecteesensenncereennrerttons Counsel for the applicants
MS D GHOSH DASTIDARMR R HALDER......-+0++ Counsel for the respondents
C.P./185/2016 (Kolkata) arising out of 0.A./2024/2015
AJOY KR MAITIL...,... MS.esscevee RADHEY SHYAM & ORS (S.E.R.)}
IMR B BHUSHAN ......-cccsccccsssssssesescsssssenrscneneaurenees Counsel for the applicants
MS D GHOSH DASTIDARMR R HALDER.....1.++ Counsel for the respondents
C.P./186/2016 (Kolkata) arising out of 0.A./2022/2015
SUJIT KR KAR......VS.. 0000 RADHEY SHYAM & ORS (S.E.R.)
MR B BHUSHAN ..... se cscs cesessncesenseeceseananes Counsel for the applicants
MR R HALDER. A... .cccecesetersneeesteesenessnensensnnnnens Counsel for the respondents
C.P./239/2016 (Kolkata) arising out of 0.A./1817/2045
BHUBHAN BHUNIA......VSssesver AK GOEL & ORS (S.E.R.)
MIR Z, HAQUE, ne. cccceccneesesetsseneensnneresarenes Counsel for the applicants
MR, DB. CHOWDHURY....... ccc teneseserees Counsel for the respondents
C.P./240/2016 (Kolkata) arising out of 0.A./1818/2015
PRIYABRATA MAITL..11.VSsee sees AK GOEL & ORS (S.E.R.)
MR ZHAQUE......cceeesesseetseeerereees Counsel for the applicants
MSABASU.......2ccsscceerseseseesenserees Counsel for the respondents
C.P./241/2016 (Kolkata) arising out of 0.A./1819/2015
SWAPAN KR JANA......VS..0000--A K GOEL & ORS (S.E.R.)
VIR Z. HAQUE, cessccceeecsesessssesceesertenesenerstas Counsel for the applicants
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MR, D. CHOWDHURY... ccecsssssesneeereeeeens Counsel for the respondents
26. C.P./25/2021 (Kolkata) arising out of 0.A./1764/2016
SANKAR DAS... VS.scse00e MR SANJAY KR MOHANTY & ORS (S.E.R.)
MIR S SEN cessccosssceseccssserssssssssseessssaccensesceeseesnessranes Counsel for the applicants
MR D CHOWDHURY vaccsscesessescsssrnsersseseenusrsesenacens Counsel for the respondents
27, C.P./29/2021 (Kolkata) arising out of 0.A./908/2017
SOMA BERA......VS..u.0 MR S K MOHANTY (S.E.R.)
MR UN BETA Li sesseecceeceesessontnseneesenseserereenes Counsel for the applicants
MIR R HALDER...... ces ceccesceeeste rer eeseeensteencee tenes Counsel for the respondents
28, C.P./10/2020 (Kolkata) arising out of O.A./1609/2018
ASIMA SAHOO. .....VS-...0000 MR S K MOHANTY (S.E.R.)
SK R ALAM cicescecececsceseceesiesneseesesanacseesseses Counsel for the applicants
MR D CHOWDHURY. .....-ssssecccecersteereessenee' Counsel for the respondents.
29, C.P./95/2020 (Kolkata) arising out of 0.A./181/2016
SUDIP KHUTIA......VS..0ce000 MR S K MOHANTY& ANR {S.E.R.)
MR B CHATTERJEE .ossescsecescsescersreseneerevees Counsel for the applicants
MR BR HALDER ou. eccscecssrscsssseeesensecceesreeteons Counsel for the respondents
30. C.P./22/2021 {Koikata) arising out of 0.A./1228/2016
KHADNUA KHATUN BIBI ...... V5... MIR SANJAY KR MOHANTY & ORS (S.E.R.)
MIR S SEN. ..cesecascesscssensneessssereneassnensreseanas ers Counsel for the applicants
MIR R HALDER .....cseesescescsnrerssssenrtansscesareens Counsel for the respondents
31. -- DELETED - [wrongly listed]
32, C.P./23/2021 (Kolkata) arising out of 0.A./1227/2016
SK ALAMIN HOSSAIN......VS..ce0 MR SANJAY KR MOHANTY & ORS (S.E.R.)
MIR 5S SEN... ccsecsssssssssesessrseesresssenesenenenesees Counsel for the applicants
MIR R HALDER vsesssssssrsstcorssscesssnersssnseccenes Counsel for the respondents
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33. C.P./24/2021 (Kolkata) arising out of O.A./185/2017
CHANDANA BHOWMICK KHANRA ...... NMS .a cease MR SANJAY KR MOHANTY &
ORS (S.E.R.)
MRS SEN. sess cceccesercssestseersssssenssesarseesereaeernasass Counsel for the appiicants
MIR D CHOWDHURY......cccessesscceeserserserensceseneees Counsel for the respondents
34. C.P./30/2021 (Kolkata) arising out of O.A./907/2017
SRUTI KUMAR BERA......VS......... MRS K MOHANTY (S.E.R.)
MR UN BETAL......cseeeeeecoeseereessseneeeenereaetenenenenees Counsel for the applicants
MS D GHOSH DASTIDAR .....sssseesseeseeetseetetenrens Counsel for the respondents
35. C.P./31/2021 (Kolkata) arising out of 0.A./1376/2016
PARTHA SARATHI MAL a... VScerevenee MR S K MOHANTY (S.E.R.)
MR UN BETALLA..ccctsceecsessssstseeeecnenteesneeeneneens Counsel for the applicants
MS D GHOSH DASTIDAR uosessssssncesesseecsearanes Counsel for the respondents
36. C.P./32/2021 (Kolkata) arising out of O.A./1384/2017
ASHIS KUMAR BERA......VSerssseeee MR S K MOHANTY (S.E.R.)
MR UN BETAL... cc cccssstscrescereessscersstsseanecneneeereses Counsel for the applicants
MS D GHOSH DASTIDAR ....ssssssceseecsnestennenneees Counsel for the respondents
Contempt Petitions : GROUP - I!
(Arising out of alleged non-compliance of order dated 16.03.2020)
37. C.P./130/2020 (Kolkata) arising out of 0.A./1013/2018
SUVENDU MANNA......VS....01VIR SK MOHANTY & ANR (S.E.R.}
MR B BHUSHAN. ....ccscssesssrsscesescceseesseesersnsesenens Counsel for the applicants
MIR R HALDER.iuu..cceccsessseecosseenerseestsetssneneneeecusncens Counse! for the respondents
38. C.P./131/2020 (Kolkata) arising out of 0.A./330/2016
AVUIT SANTRA......VS... css MRS K MOHANTY & ANR (S.E.R.)
MR B BHUSHAN... ..cccecceeressstrseeetersteeerersants Counsel for the applicants
MR R HALDER. A... esessecsssscressssseeceonseoesenetestens Counsel for the respondents
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7
39. C.P./15/2021 (Kolkata) arising out of 0.A./1727/2017
PRANATA KUMAR JANA......VS..-.000 MR S K MOHANTY & ANR (S.E.R.)
MIR S SEAL. cccessesssseesse scene sersnneereeserenees Counsel for the applicants
MIR R HALDER useeceecesceecsnsessrcesnneesenenenens Counsel for the respondents
40. C.P./17/2021 (Kolkata) arising out of O.A./1693/2017
PAPIA JANA .sss.WScecscveee MRS K MOHANTY & ANR (S.E.R.)
MR R GHOSH a0... cceccscceeeesesserenreeeseeseesersetanenns Counsel for the applicants
MR R HALDER .....-ecsssseecssseescsssenersnsesnseesas Counsel for the respondents
41. C.P./18/2021 (Kolkata) arising out of 0.A./1708/2017
RAGHUPATI JANA. V Sees ceeee MR S K MOHANTY & ANR (S.E.R.)
MIR S SEAL... escsesercceesncncseeseeeesernsunanseenes Counsel for the applicants
MR R HALDER ...ssesesescessssscesenserersenrstecesves Counsel for the respondents
42. C.P./132/2021 (Kolkata) arising out of 0.A./772/2017
MADHABI KHANRA......VS......0IMR SANJAY KUMAR MOHANTY (S.E.R.)
MIB S SEN. .escscesscssscecescssscecertsssereesesssensesenenesaentes Counsel for the applicants
MR D CHOWDHURY... ces essensesetereteetnenseeees Counsel for the respondents
43. C.P./36/2021 (Kolkata) arising out of 0.A./493/2017
ASISH NATH......VS........ MR MANOJ JOSHI {E.R.)
MR B DAS, MR B. CHATTERIEE.......... Counsel for the applicants
MR. A. DATTA... cescereen Counsel for the respondents
4A, C.P./37/2021 (Kolkata) arising out of 0.A./491/2017
ANIRBAN ROY......VS...08 MR MANOJ JOSHI (E.R.)
MR B DAS, MR B. CHATTERJEE.......... Counsel for the applicants
MR. S. K. PAL, MR. A DATTA, MR. BB CHATTERJEE
eseeeseneneeaees Counsel for the respondents
45. C.P./14/2021 (Kolkata) arising out of 0.A./639/2016
SANJOY KUMAR KALA ...... V5S...... MR SANJAY KR MOHANTY & ANR (S.E.R.)
MIR S. SEN wuesecscssesccceccereeesseesensererssearesteeaness Counsel for the applicants
uuceesanuenanenesseanqestenecenecsensnescusqesceqeerasennaeneses Counsel for the respondents
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46. C.P./40/2021 (Kolkata) arising out of O.A./1192/2017
SK GOLAM HOSSAIN... VScerceece MR SANJAY KUMAR MOHANTY
MIR T. BASAK.escsetsesessceccersssscsssesrsaeensnesesnsesccesesees Counsel for the applicants
MIR S. S. MANDAL. a eececcceceessseeseescenecesreaesees Counsel for the respondents
47. C.P./60/2021 (Kolkata) arising out of 0.A./1822/2016
DEBI PRASAD RUIDAG..,......VS.00..V BHUSHAN & ORS,
MR SK. DATTA, MR. A. K. DATTA... Counsel for the applicants
"NONE- ----------csceesseceeesennssseternsseeans Counsel for the respondents
48. C.P./61/2021 (Kolkata) arising out of 0.A./1824/2016
KALAM ALI MONDAL......VS..-0008 V BHUSHAN & ORS.
MR SK. DATTA... ee eesceetteesesenreneeeeens Counsel for the applicants
MIR. S. PAUL... ce eeesssccscneneceesensennersenses Counsel for the respondents
49. C.P./69/2021 (Kolkata) arising out of 0.A./887/2014
SYED MONIBUR RAHIM..1.0VSsseseeeee ARCHANA JOSHI & ORS.
MBS S. AREFIN......ccsccsssssrescescrscceseseeneeaaens Counsel for the applicants
MR. R. HALDER, MR. D CHOWDHURY........0000+ Counsel for the respondents
ORDER
Jayesh V. Bhairavia, Judicial Member:
1. As common question of facts and law govern these group of contempt petitions, they are being heard out analogously upon due notice and with the consent of all the sides, and are treated for disposal by this common order.
Facts & Developments in the background:
2. The facts in the background involve chequered history. In the year 2015-
16, the applicants (the land losers) aggrieved by non-grant of employment p assistance to them in lieu of the land acquired by the Railways to construct a Railway Project BowaichandiArambag Special New B.G.Project Railway line, Nandigram-Dankuni and in-action on the part of the respondents in not following the terms and conditions stipulated in the scheme/policy ie RBE 99/2010 dated 16.07.2010, approached this Tribunal by way of filing O.As being O.A.No.2020/2015 (i.e. Buddhadeb Senapati and Others) and other analogous O.As. The said group of O.As were disposed of by this Tribunal vide separate order dated 23.12.2015with the following direction,:-.
"Railway authorities shall process the case_of the applicants within a period of three months from the date of receipt of a copy of this order _andif they satisfied, the requirements contemplated under the scheme dated 16.07.2010, appointment might be given to them. O.A. is disposed of. No costs."
2.1 Alleging non-compliance of the aforesaid order dated 23.12.2015 the applicants filed contempt petitions before this Tribunal being C.P.No.187/2016 & other analogous C.P.s (i.e, Group-I of Contempt petitions as mentioned at Srl. No. 1 to 36 in the Cause Title of this order.) 2.2 Other similarly placed applicants (the land-loser),whose claim for grant of employment assistance was not acceded to by the railway authorities on the ground that the project for which the lands were acquired was stalled, also approached this Tribunal by filing various O.As such as O.A. No. 1313 of 2019 with other analogous O.As. The said batch of O.As also came to be disposed of by this Tribunal by common order dated 16.03.2020 with following observations and directions:--
ql
8. 10
From the records we discern the following :
U
(i)
(iii)
(iv)
(v) (vy)
(vii)
(viii).
(ix) That, inarguably and indubitably the applicants are the land losers, whose lands have been acquired by the Railways to construct a Railway Project (here BowaichandiArambag Special New B.G.Project Railway line). They were thus dispossessed of their land to facilitate construction of a Railway Project.
That their right to employment under Railways' land looser scheme flows from RBE 99 of 2010, extracted supra, that was prevalent at the material time when land was acquired, It was under a clear assurance of employment flowing from the Railway Policy that they agreed to part with their source of livelihood.
That the respondents were already directed in the earlier O.A, to screen the applicants and consider them as per scheme, and if Sound suitable legally, to accord necessary benefits to them, The respondents had never sought for any liberty to not follow the direction on the ground that the project for which land was acquired, did not turn out viable. The respondents are therefore in clear contempt.
Moreover, 28 identically circumstanced land landloosers who were dispossessed due to proposed construction of BowaichandiArambag New BG Line and had supposedly lost their source of livelihood have been appointed/accommodated against other viable projects in compliance of the provision in RBE 99 of 2010. Therefore, the respondents are estopped by their conduct to deny employment to the present land losers on the ground that the project in question has been stalled.
Admittedly, the project got stalled, but even after the project got stalled, 28 land losers under the same project were accommodated, elsewhere and therefore respondents have arbitrarily meted out discrimination against the present applicants. They have attempted to create a class within a class, which is not permissible in law.
The applicants right to employment is fortified by the RBE 99 of 2010 as well as the decision rendered in the previous OA fo screen them and consider them as per scheme and to accord them necessary benefits, as also the fact that employment has been provided to identically placed land losers. Hence they are entitled to identical relief.
We further discern that the Railways are conspicuous by their silence on the reason why the present applicants, when others have been accommodated already, that too, after the project in question was stalled, cannot be accommodated against its other similar viable projects. Railways by depriving the present applicants their right flowing from RBE 99 of 2010, due to subsequent circular introduced with prospective effect, are resorting to macrocompartmentalisation on the basis af a micro distinction or no distinction at all, which is grossly unfair.
The respondents have not rejected the claim of the applicant upon due screening. They have simply refused to screen them as the project, in question, has been stalled.
In WPCT 74 of 2016, the Hon'ble High Court at Calcutta while considering an identical matter of a land loser who was denied A 11 employment by Railways on the ground of age bar, has directed as under:
"21, Ht is evident from the materials-on-record that event land losers, who were 47 years old, have been offered appointment, The respondent no. I was 46 years old on the date he approached the tribunal for the first time. When his claim was rejected by the first order dated July 15, 2014, age-bar was not cited as a ground therefor. What we find is that there were absence of certain documents/papers for which the claim of the respondent no.l could not be put up before the screening committee for screening. If indeed that was the reason for regretting his prayer, the petitioners ought to have asked the respondent no. 1 to supply the documents, which were not there in the file, instead of closing his right to claim appointment. We, therefore, propose to pass the following further directions to close the breach:
(i) within a period of seven days from date of receipt of a copy of this judgment and order, the Chief Personnel Officer Shall intimate the respondent no.1, which of the documents are required from his end for ensuring placement of his claim before the screening comimittee;
(il) within a month of receipt af such intimation, the respondent no.1 shall produce the necessary documents/papers before the Chief Personnel Officer and upon receipt of such documenis/papers, the claim of the respondent no.I shall be placed before the screening committee for an appropriate decision;
(iii) bearing in mind the fact that other land losers have been offered appointment even upon attaining 47 years of age, we hope and trust that the screening committee shail not cite age-bar as a ground for not considering the claim of the respondent no.1 and if a power of relaxation is indeed available to consider invocation of such power if the merits of the case so warrants; and
(iv) the entire exercise shall be completed as early as possible but not beyond June 30, 2019."
TO. In view of the direction of the Hon'ble High Court supra, and our revelations as indicated above, we feel it appropriate in the interest of justice, to direct the respondents to undertake an identical exercise as directed by the Hon'ble High Court in WPCT 74 of 2016 and issue appropriate order in regard to the present applicants within 4 months.
Accordingly, along with the present O.A., all the O.As.cited above, that related to identically circumstanced land losers, in regard to the same project as in this O.A. or otherwise, whose right to employment under land looser category flows from RBE 99/2010, are disposed of with identical direction. Pending M.As.in the some of the O.As. also stands disposed of. No costs."
122.3 Alleging non-compliance of the aforesaid common order dated 16.03.2020 in O.A.1013/2018 and other analogous O.As, the applicants therein filed contempt petitions before this Tribunal being C.P.No.130/2020 in 0.A.1013/2018 along with analogous C.P.s (i.e. Group-II of Contempt petitions as mentioned at Srl. No. 37 to 49 in the Cause Title of this order).
3. As common question of facts and law govern these group of contempt petitions,for the sake of brevity, the pleadings of CP No. 187/2016 (i.e first set of group of CPs alleging non-compliance of order dated 23.12.2015) and the pleadings of C.P.No.130/2020 of second set of CPs (i.e alleged non-
compliance of order dated 16.3.2020) have been referred to.
4. It emerges from the record that for alleged non-compliance of the order dated 23.12.2015, on receipt of the notice dated 28/09/2018 issued by
- this Tribunal in 'first group of CPs', the respondents have filed their first compliance report dated 07/02/2019, wherein, it is stated that in compliance to the direction/order issued by this Tribunal, the case of the applicants were considered by the competent authority and the decision was conveyed to the applicants vide letter dated 11.3.2016 (Annexure CR-1) stating that "it was a matter of fact that Deshpran-Nandigram New Railway Line Project was sanctioned long back and to execute the project land was acquired by the Railway Administration at the material point of time but on account of paucity of fund and other administrative constraints the Railway Administration was not in a position to run the project and consequent to that there was no progress of work, therefore, returns from the Project were wr 13 not justified and they were not in a position to extend employment assistance to the land losers of the said Project at this present juncture. "
4.1 4,2 4.3 The original applicants objected to the aforesaid compliance report. It was brought to the knowledge of this Tribunal that the respondents had offered employment to other similarly situated person. Having considered the said submission of the applicants in the CPs, this Tribunal vide order dated 08.02.2019 further directed the Railway Authorities to issue fresh speaking order and the contempt petitions were adjourned thereafter from time to time. In the meantime, it was further brought to the knowledge of this Tribunal that for the same Project, the respondents appointed 2 applicants (land losers) whereas the case of other applicants/claimants was not considered. Therefore, in the aforesaid first set of contempt petitions, this Tribunal vide order dated 09.08.2019 further directed the respondents to the effect that :-
"#9 take instructions as to why the applicants would not be considered/suitably adjusted against other vacancies available and clarify, when 2 persons amongst the applicants were appointed against the same project in 2017, why the present applicants were not considered against the same project or against suitable vacancy or other projects in an open line.
Since we find that the applicants are subjected invidious discrimination vice-versa two applicants have been appointed in 201 6 i.e. 11.07.2016, namely, MahuyaBhunia and Deb DulaiKar and the respondents have nowhere elaborated why the applicants were not considered in terms of the scheme of 2010, let a reasoned and speaking order be issued and compliance report be filed by 8 weeks."
Thereafter, again by taking into consideration the disclosure made respondents in their compliance report filed in other CPs to the effect that out of total 1035 land losers with respect to the different projects, approximately 416 land losers were given appointments fi 14 by giving relaxation in age and educations qualifications to some of the land losers, this Tribunal further directed the respondents to take appropriate instructions as to why the only 416 land losers were given appointments out of 1035 land losers. This Tribunal in the said order also observed that the project had been stalled and that it was not viable to grant the reliefs to the applicants Probably the same order has been passed in 2012. However, the facts show that the appointment orders in favour of the land losers had been issued till 2016.
Again vide order dated 10.01.2020,this Tribunal by taking into consideration the discrepancy in the recruitment process for land losers, directed the respondents to explain why the applicants were left out from being appointed and also directed to furnish the Scheme and other details.
4.4 Inthe meantime, the Hon'ble High Court at Calcutta while dealing with challenge to the additional directions issued by this Tribunal in contempt petition 96/2014 in O.A 1058/2013 dated 16.12.2015, the Hon'ble High court vide order dated 08.02.2019 in WPCT 74/2016 set aside the order passed by this Tribunal dated 16.12.15, on the ground that this Tribunal had exceeded its jurisdiction in passing additional/further direction in the CP.
After recording aforesaid findings, the Hon'ble High Court in the second part of its order dated 08.02.2019 issued further directions upon the original respondents (railway authorities) to (hn 15 consider the claim of land loser/applicants by granting opportunity to submit their relevant documents as well by extending them the benefits of age relaxation within stipulated time.
4.5. This Tribunal, in due regard to the aforesaid direction issued by the Hon'ble High Court in second part of the order dated 08.02.2019 in WPCT 74/2016, disposed of the second group of O.A.s ie 1313/2019 and other analogous OAs vide common order dated 16.3.2020. (supra) with direction to the respondents to consider the case of the applicants in light of the order passed by the Hon'ble High Court.
4.6. Thereafter, alleging non-compliance of order dated 16.03.2020, the applicants filed CPC No. 130/2020 and other analogous CPs before this Tribunal under the provisions of the Section 17 of AT. Act 1985 with Contempt of Courts (CAT Rules 1992) Le second group of CPs herein.
5, During the course of adjudication of both these Contempt Petitions involving common cause, as noticed herein above, time and again this Tribunal directed the respondents to submit their additional compliance affidavit with respect to the process undertaken by railway authorities for grant of employment assistance to the applicants in terms of RBE 99/2010.
6. In the meantime, aggrieved by the order dated 16.03.2020 passed by this Tribunal, the original respondents approached the Hon'ble High court of Calcutta by way of filing W.P.C.T.No.28/2021 (Union of India & Others Vs. y 16 Jahangir Chowdhury & Others) & W.P.C.T.No.75/2020 (Union of India & Others vs. Chandi Das Khan & Others).
6.1. The aforesaid writ petitions came to be disposed of by Hon'ble High Court vide order dated 01.07.2021, whereby the order dated 16.03.2020 passed by this Tribunal was upheld and Hon'ble High Court had granted further 3 months' time to comply with the said order.
6.2. By taking into consideration the aforesaid order dated 01.07.2021 passed by Hon'bie High court of Calcutta, this Tribunal granted further time to respondents to submit their additional compliance affidavit in the present group of CPs.
7. On 21.01.2022, the Learned Counsel for the respondents submitted before this Tribunal that the General Manager had informed him that a decision had been taken by the Railways to consider the case of the present applicants for appointment on the suitable posts in the Railways in the land losers category and call letters to that effect had been issued in light of final order dated 01/07/2021 passed by High Court in WP.CT 28/2021 & 75/2020. Accordingly, this Tribunal allowed further 4 weeks' time to place on record the copy of the said cali letters and the decision taken by the Railways, (referred court proceeding dated 21.01.2022 in CP.
No.187/2016).
8. In the meantime, and, after the process of document verification was over, the respondents published the list of eligible candidates as well those who remained unsuccessful in said process of document verification. The respondents issued call letters for participation in Physical Efficiency Test pp.
17(hereinafter refer as PET) in favour of the candidates/applicants who were successful in the document verification process. The scheduled for the said PET was fixed to 02.04.2022.
9, During the pendency of the present group of CPs, one of the applicants in herein namely, Sudip Khutia aggrieved by the decision of respondents for conducting Physical efficiency Test as scheduled on 02.04.2022, filed separate OA no. 495/2022 on 20.03.2022 and sought relief therein to quash and set aside the call letter of PET and also sought relief for issuance of direction upon the respondents to grant employment assistance without calling him for PET.
It is noticed that this Tribunal vide order dated 25.03.2022 in the said O.A directed the respondents to file their reply justifying the decision for conducting the PET and in the meantime directed the respondents not to hold any PET till the next date and the order was ordered to be listed on 06.05.2022.
10. Further it is noticed that during the pendency of the present CPs, as well the aforesaid ©.A (supra), the applicants of CP No. 187/2016 (first group of CPs) have filed an M.A. 187/2022 in CP No. 187/2016 and had sought additional relief to quash and set aside the decision of the respondent to conduct Physical Efficiency Test and prayed for issuance of direction upon the respondent to conclude the appointment process in compliance of joint procedural order dated 03.06.2011 and as per Railway Board's letter i dated 28.09.2010.
18According to the applicants, the said PET is unsolicited / uncalled for in the present recruitment process mainly on the ground that identical and similarly placed 416 land loser candidates, who have been appointed earlier by the Railway authorities have not been subjected to any PET. The terms and conditions as stipulated in RBE 99/2010 do not prescribe any PET for appointment on compassionate ground.
11. Further, it is noticed that by taking into consideration the submission of the Ld. Counsel for the respondents that after the verification process is over, the applicants' case will be processed for consideration against the post released by the Board, this Tribunal further directed the respondents to complete the verification of documents expeditiously and process applicants' claim in accordance with law and place on record the decision of the Board whereby the posts have been released in favour of the applicants.
The CPs were thus adjourned accordingly.
12. At this stage, it is apt to mention that during pendency of the aforesaid CPs, this Tribunal in O.A 495/2022 by taking into consideration the order passed by Hon'ble High Court at Calcutta dated 02.09.2022 in CPAN No.277/2022 in W.P.C.T.No.75/2020 and CPAN No.713/2022 in W.?.C.T. No.28/2021, directed the railway authorities vide dated 12.09.2022 that the applicants who have received call letters for PET should be allowed to appear for PET which shall be subject to the result of the said O.A. and subject to the issue being decided by the Hon'ble High Court at Calcutta. In other words vide order dated 12.09.2022, the respondents were directed to fr 19 proceed further with the scheduled PET subject to outcome of the pending O.A.
13. Thereafter, in the present group of CPs, this Tribunal passed an order dated 27.09.2022, in which it was observed by the Tribunal in that " time and again this Tribunal had deprecated holding the Physical Efficiency Test when no such procedure is laid down in the Board's order in RBE 99/2010." Further it was observed in the said order that "the Violation of the direction of the Tribunal is thus loud and clear. The alleged contemnor, despite repeated opportunities having been granted, failed to Justify non- compliance." The Tribunal was of the view, at that stage, that "the violation being deliberate, conscious and willful, a charge needs to be framed against the alleged contemnor No.1 asking him either to grant appointment to the land losers within 4 weeks and to submit a report or to appear in person to justify such violation, failing which, appropriate contempt proceedings shall be drawn up against the said alleged contemnors. This Tribunal further observed in the ordez that " accordingly, frame charge under Form No. LI (Rule 13 (b) (i)) charge, of the Contempt of Courts (C.A.T) Rules, 1992 and issue the same to the alleged contemnor, List the matter on 11.11.2022."
14. Thereafter, the present group of CPs were taken up for hearing on 98.11.2022. On that day, Ld. Counsel for the respondents submitted that being aggrieved with the order dated 27.09.2022 passed by this Tribunal, the respondents had approached the Hon'ble High Court of Calcutta by filing WPCT 105/2022 (UOI and Ors Vs. Raju Jana &Ors) along with other WPCT. On the other hand, Id. counsel for the applicants submitted that ip 20 the said WPCT had been dismissed by Hon'ble High Court vide order dated 23.11.2022.
Upon this submission, Ld. counsel for the respondents requested to grant short time to submit their additional compliance report as the respondents were in process of filing an SLP before the Hon'ble Apex court against the order passed by the Hon'ble High Court dated 23.11.2022. Accordingly, by accepting the request of counsel for the respondents, this Tribunal deemed it fit to grant further 3 weeks' time as last chance to the respondents to adhere to the direction issued by this Tribunal in the main O.A as well the orders passed in the present group of contempt petitions.
The matter was accordingly ordered to be listed on next 23.12.2022.
15. On 23.12.2022, the respondents filed their combined compliance reply/affidavit. The counsel for the applicants also filed written notes of submission. A senior officer from the office of the respondents remained personally present and tendered unconditional apology and reiterated that the ongoing selection process would be concluded shortly as per the direction issued by the Hon'ble High Court as well as by this Tribunal.
Submissions & Arguments on behalf of the Applicants:
16. Ld. counsel for the applicants reiterated the aforesaid facts and referred to the various interim orders passed by this Tribunal as well as the order passed. by the Hon'ble High Court. Based on that, it was mainly argued that the respondents have willfully disobeyed the order passed by this Tribunal and with a view to dilute the direction issued by this Tribunal, the Ma
-
21respondents have erroneously introduced a new condition i.e. to conduct Physical Efficiency Test, which is not stipulated in RBE 99/2010.
16.1. It is submitted that the General Manager is the competent authority and is empowered in terms of the Scheme/Circular/RBE 99/2010 for grant of relaxation, with respect to age, education etc. for the purpose of employment assistance to the land losers. It is further submitted that though the discretionary power in respect of grant of relaxation has been exercised by the GM in favour of more than 400 such land losers and they were offered appointments in railways that too without there being any PET, in the case of applicants the said discretionary power for grant of relaxation has not been exercised by the competent authority, depriving the applicants of their legitimate claim for appointment.
16.2. It is next submitted that even otherwise the respondents have arbitrarily rejected the claim of applicants. The directions issued by this Tribunal vide order 23.12.2015 and 16.03.2020 were upheld by the Hon'ble High Court in various Writ Petitions. The SLP there against also came to be dismissed. Therefore, it is not open for the respondents to deny the employment assistance to the applicants. Further, it is submitted that the applicants have not been treated equally by the respondents and as such the respondents have not complied the direction issued by this Tribunal dated 23.12.2015 as well the directions issued vide order dated 16.03.2020 in its "a true letter and spirit.
22Learned counsel for the applicants lastly submitted that as opined by this Tribunal in its order dated 27.09.2022 the respondents are liable to be punished under the provision of the Contempt of Courts (CAT) Rules, 1992 16.3 Ld. Counsel appearing for the applicants in support of their submission placed reliance on the following judgments and the Resettlement Policy 2007:
(i) (2013) 6 SCC 573 (State of Kerala and Ors versus Kandath Distilleries)
(ii) 2010) 3 SCC 621 (Hari Ram and Another versus State of Haryana and Others)
(iii) Judgement passed by Hon'ble High Court of Orissa in WP No. (C) No. 5102/2013 Krushna Chandra Nayak vs the Railway Board _-- Secretary.
iv) Chandra Shashi vs Anil Kumar Verma (1995) 1 SSC 421
v) T. R Dhananjaya vs Jaivasudevan (1995) 5 SSC 619
vi) Baranagore Jute Factory PLC Mazdoor Sangh (BMS) & Ors Vs Baranagore Jute Factory PLC & Ors (2017) 5 SSC 506
vii) The National Rehabilitation and Resettlement Policy 2007.
It is submitted that the Hon'ble Apex Court in the case of Baranagore Jute Factory PLC (supra) held that the court has a duty to issue appropriate direction for remaining or rectified the things in done in violation of the orders. The Court may even take restitutive measures at any stage of the proceedings. Further by relying upon the judgment passed in J. Vasudevan case (supra), it is submitted that the railway authorities had already recognized the right of applicants/land loser for grant of employment assistance in terms of RBE 99/2010, this Tribunal and the Hon'ble High Court had directed time and again to extend the pe 23 benefits of the same. However, the respondents for one reason or another reason not extended the benefit. Therefore, the inevitable conclusion must be arrived that the respondents have deliberately and willfully defeat the orders of this Tribunal. It is submitted that as this Tribunal opined in the order dated 27.09.2022 about the willful disobedience on the part of respondents, appropriate order for punishment require to be issued against the contemnor in light of judgment passed by the Hon'ble Apex Court in the case of Chandra Shashi (supra).
4Submissions and Argument on behalf of the alleged contemnors;
17. On behalf of the alleged contemnors/respondents, Mr. R. Halder Ld. counsel by referring to the various compliance reports filed in the CPs as well as by referring to the detailed explanation given in the written submission dated 22.12.2022, mainly submitted that:-
17.1 There is no willful intention on the part of the respondents to disobey the directions issued by this Tribunal. 17.2 Initially in terms of RBE 99/2010, the respondents had offered employment assistance to some of the land losers. Thereafter, the competent authority faced genuine difficulty to process the case of the applicants for various reasons which were beyond control of the railway authorities such as, non-availability of the fund and the Project was stalled. Therefore, at the relevant time, the respondents were not in a position to extend the same ti 17.3.
17.4.
17.5 24 benefit of employment assistance to other remaining land losers including the applicants herein and the said decision of the respondents was conveyed to the applicants herein at the relevant time in pursuance of the directions issued by this Tribunal dated 23.12.2015 and 16.03.2020.
As per the additional directions issued by this Tribunal as well as the Hon'ble High Court, the case of the applicants were reexamined and re-verified for grant of employment assistance as per the directions issued by this Tribunal dated 23.12.2015 and 16.03.2020.
During the pendency of challenge to the order passed by this Tribunal in writ petitions before the Hon'ble High Court at Calcutta, the respondents in compliance of orders/interim order passed by the Hon'ble High Court had processed the case of applicants for employment. As such the respondents have sent call letters to all the applicants for document verification. After the said process was over, they have also issued call letters to the eligible candidates for physical efficiency test in the month of February, 2022.
During the pendency of various Petitions/CAN/CPAN before the Hon'ble High Court at Calcutta, the railway authorities had proceeded with the recruitment/selection with bonafide intention to give appointment to eligible successful candidates. fi 17.6 25 During continuation of the said process for recruitment, this Tribunal vide order dated 25.03.2022 in OA No. 495/2022 (SudipKhutia vs. S.E. Railway) directed the respondents, "not to conduct PET till the next date of listing". The said interim order continued upto 12.09.2022. Accordingly the process of the said PET and selection of successful candidates could not be proceeded further.
17.7 Thereafter, by considering the order passed by the Hon'ble 17.8.
17.9 High Court dated 02.09.2022 in CPAN 277/2022 in W.P.C.T.No.75/2020, this Tribunal vide order dated 12.09.2022 in OA No. 495/2022 permitted the applicants herein to appear in the PET with further observation that the same would be subject to the result of OA as well as the issue being decided by the Hon'ble High Court. Accordingly, the respondents are taking steps to conclude the recruitment process expeditiously.
The respondents have issued call letters to eligible candidates for PET in consonance with the dictum laid down by the Hon'ble Apex Court in the case of Union of India 7 Ors. vs. Shankar Prasad Deep etc. reported in 2019 (16) SCC 286.
While conducting document verification of the applicants, the competent authority had already granted benefit of age (ph 26 relaxation of 15 years to various categories by following manner:-
Community Upper age limit for Level-1 Upper age limit after 15 years recruitment age relaxation as per Hon'ble Supreme Court's order UR 33 48 OBC 36 51 SC/ST 38 53 17.10 One of the original applicants, namely, Pabitra Kumar Das (applicant of 0.A.1381/2017) filed Writ Petition being W.P.C.T.35/2021 for non-compliance of the order passed by this Tribunal dated 16.03.2020. The said writ petition was disposed of by Hon'ble High Court vide order dated 16.08.2021 with the observation and direction that the said order dated 16.03.2020 is yet to be complied with and the authorities concerned was directed to act in accordance with the directions passed by this Tribunal in Paragraph 10 of the said order within 2 months from date.
Due to administrative difficulties, the case of the applicant of the said Writ Petitioner was not processed within the stipulated time. Therefore, Contempt Petition being CPAN No.923/2021 in W.P.C.T.No.35/2021 was filed by him. Thereafter on request of the General Manager, South Eastern Railway in CAN No.1/2022 in CPAN No.923/2021 the Hon'ble High Court at Calcutta had extended the time to comply with the order dated 16.08.2021. The respondents processed the case of Ws fi"
FY the applicants as per the direction issued in Para 10 of the order dated 16.03.2020 passed by this Tribunal and as such, submitted their affidavit in compliance before the Hon'ble High Court. After considering the said affidavit of compliance, the Hon'ble High Court satisfied with compliance of order dated 16.08.2021 and had disposed of the said contempt petition i.e. CPAN No.923/2021 vide order dated 19.05.2022. The respondents herein have followed the direction issued by the Court of Law time and again, and have considered the claim of land losers and appropriate order for appointment has been issued in their favour. 17.11. Another applicants/land losers, namely, Dulal Chandra Gayen, Pabitra' Kumar Das and Krishnendu Garu, filed writ petition/contempt petitions before the Hon'ble High Court . They participated in the recruitment process including PET and medial Test and on being successful they were given appointments in terms of the RBE 99/2010.
17.12 During the pendency of various Petitions/CAN/CPAN before the Hon'ble High Court on the issue of grant of employment assistance to the land losers in terms of RBE No.99/2010, the railway authorities had proceeded with the recruitment/selection with bonafide intention to give appointment to eligible successful candidates. There is no ill will on the part of the respondents to delay the process. Since the railway authorities have to maintain the absolute safety of the public at large and the railway Mee 28 properties, they are under statutory obligation to take absolute care regarding the medical fitness of the candidates while recruiting them.
17.13. Any delay caused in processing the case of the applicants was due to genuine difficulties as well as on account of ongoing various judicial proceedings as referred to hereinabove and due to the circumstances, which were beyond their control. The alleged contemnors by way of their affidavit in compliance also expressed their unconditional apology before this Tribunal for such unintentional delay caused in compliance of the orders of this Tribunal.
17.14. Ld. counsel for the respondents reiterated that the authorities are willing to give appointment to the eligible candidates who fulfilled "satisfied the requirements contemplated under the scheme dated 16.07.2010" as per order passed by this tribunal 26.12.2015 and 16.03.2020. As such, screening of papers has already been completed by 17.03.2022 and call letters have already been issued to appear in PET on 22.04.2022. In this regard, it is further submitted that the Physical Efficiency Test is not a new idea. It is settled procedure about selection as incroduced by Railway Recruitment Board vide letter dated 12.03.2007 as well as the guidelines issued by RRC on October 12, 2010 in RBE 99/2010 it was clarified unambiguously oi 29 that the applicants should normally fulfill the eligibility and other conditions prescribed for the post against direct recruitment quota from open market and as such they have to go through PET as per RBE 164/2006.
17.15. Ld. counsel by relying upon the judgment passed in the case of
18. UOI and Ors vs, Shankar Prasad Deep (2019) 16 SCC 286 as well the judgement passed in Basawaraj & Anr vs. Special Land Acquisition Officer (2013) 14 SSC 81 submits that the Hon'ble Apex Court had held therein that for appointment as land loser, the petitioner should have gone through the PET test. It is submitted that this Tribunal had directed the railway authorities to process the case of applicants if they satisfy the requirement contemplated under the scheme dated 16.07.2010 and appointment might be given to them. Since the respondents have processed the claim of applicants and as per the medical fitness certificate the procedure for grant of employment assistance, as such there is no willful disobedience on the part of respondents tc comply with the direction issued by this Tribunal. As per the direction issued by the Hon'ble High Court, the candidates who failed in PET, were also considered by the respondents and they were sent for further medical examination. Based on the certificate issued by medical experts' committee, the wy 30 employment has been offered to such candidates/applicants in accordance with their respective medical category. 18.1. The directions issued by this Tribunal as well as by the Hon'ble High Court with respect to processing the case of the applicants/land losers for employment assistance in terms of RBE No.99/2010 have been substantially complied with. In view of what has been submitted above by the alleged contemnors and in view of the aforesaid compliance and explanation as well as the ongoing selection process highlighted, learned counsel for the respondents submitted that the present Contempt Proceedings be dropped in the interest of justice. Analysis & Observation:
19. The above narrated facts, events and subsequent developments during the pendency of the present proceedings, would clearly go to show that in compliance of the order passed by this Tribunal dated 23.12.2015 and 16.03.2020 (supra) as well as the additional directions issued by this Tribunal during the pendency of these CPs, the respondents have processed the case of the applicants for grant of employment assistance in terms of RBE No.99/2010.
19.1. Admittedly, the respondents have issued call letters to the applicants for document verification and had granted benefit of the age relaxation. Further as noted hereinabove, as per the direction issued by the Hon'ble High Court by granting relaxation jt 0 31 with respect to educational qualification, the cases of applicants have been processed and considered by the respondents for employment assistance.
It is also an undisputed fact that the candidates, who remained successful in document verification, have been called for Physical Efficiency Test (PET) scheduled on 02.04.2022.
However, as noted hereinabove, some of the applicants have raised their grievance against the introduction of the said PET and had also filed separate O.As before this Tribunal during the pendency of this CPs. The said grievance was raised by the applicants mainly on the ground that the railway authorities had offered employment assistance to more than 400 land losers without there being any PET and as such, in the terms and conditions stipulated in RBE No.99/2010, no such provision of PET has been prescribed.
19.2. As noted herein above, initially, this Tribunal vide order dated 25.03.2022 :n 0.A.No.495/2022 (Sudip Khutia Vs. South Eastern Railway) restrained the respondents from conducting PET for the candidates such as applicants herein who have been served with call letters for PET. Accordingly, as per the order passed by this Tribunal, the recruitment process was put on hold.
19,3. Thereafter, during pendency of the said O.A. 495/2022 (Sudip Khutia) as well as the present Contempt Petitions, the Hon'ble High Court at Calcutta passed order dated 02.09.2022 in CPAN i py 32 No.277/2022 in W.P.C.T.75/2020 and CPAN No.713/2022 in W.P.C.T.No.28/2021,which reads as under:-
"The petitioner shall participate in the physical and medical test. The participation in the physical test would be without prejudice to the right of the petitioners as the joint procedure prevailing in the year 2010, there was no requirement of any pirysical test.
It is needless to mention that petitioner who would qualify in the physical and medical test would be appointed within seven days from such tests being carried out by the concerned authority. The entire process shall be completed within three weeks from date. The concerned authority should keep in mind that no one should be precluded for lack of educational qualification, as the relevant notification published in the year 2010 mentioned non-matric for being appointed for the said post and accordingly, all the orders preceding our order have recognized the right to get appointment.
The alleged contemnors cannot change the condition to the detriment of the petitioners. Let the matter stand adjourned to 23" September, 2022."
19.4. This Tribunal by giving due regard to the aforesaid order, modified the interim order passed on 25.03.2022 in O.A. No.495/2022 and permitted the eligible applicants to participate in the PET subject to outcome of the pending O.A. vide order dated 12.09.2022.
19.5. It is also pertinent to mention here that from amongst the applicanzs who participated in the PET, some of the applicants stood failed in the said test. In the meantime, the Hon'ble High Court after considering the fact that long time has passed after 2010, it may be difficult for applicants to meet with the gt! '.
20.
21.
22. 33 requirement of PET and even otherwise said condition was not stipulated in the original Scheme of 2010, directed the railway authorities to send such claimants/applicants who failed in the PET for medical test and grant appropriate appointment in relevant category.
It is seen that as per the various directions issued by this Tribunal and Hon'ble High Court at Calcutta time and again, the respondents have processed the case of the applicants for appointment.
It is settled principle of law that the court/ribunal dealing with application for contempt of court under the provisions of the Contempt of Courts Act, 1971 as well as The Contempt of Courts (CAT) Rules, 1992 cannot traverse beyond the terms of the order (the original order). While exercising contempt jurisdiction, the courts/tribunals are not expected to test correctness or otherwise of the order or give additional direction or delete any direction. If court/tribunal does so, the same would be an act exercising review jurisdiction while exercising contempt jurisdiction which would be impermissible and indefeasible.
In this regard it is appropriate to refer to the order passed by Hon'ble High Court at Calcutta dated 08.02.2019 in W.P.C.T.74/2016 with CAN 3956/2017. In the said case, the original applicants/land losers had filed O.A.1058/2013 which 22.1.
22.2.
came to be disposed of by this Tribunal vide order dated 29.08.2013 with a direction upon the respondents to consider and decide the applicants' representation in accordance with law as well as Railway Board's circular dated 16.07.2010 within stipulated time.
Acting in compliance with the said order, the orginal respondents had passed an order dated 15.07.2014 to the effect that the applicant therein had not submitted the requisite documents and therefore, his case was not considered to put up before Screening Committee for screening. Accordingly the respondents declined appointment to the applicant of the said O.A. Agegrieved thereby, the original applicant filed contempt petition being C.P.96/2014 before this Tribunal, wherein this Tribunal time and again had issued various directions and subsequently with additional direction disposed of the said CP vide order dated 16.11.2015.
Aggrieved with the said order dated 16.11.2015, the Union of India & Others (original respondents) had approached the Hon'ble High Court at Calcutta by way of filing W.P.C.T.74/2016.
The Hon'ble High Court at Calcutta, by referring to the law laid down by the Hon'ble Apex Court in J.S. Parihar Vs. Ganpat Duggar & Others reported in 1996 (6) Supreme 133 yy 35 as well judgment passed in SudhirVasudeva, Chairman & M.D., O.N.G.C. & Others Vs. M. George Ravi Shankaran& Others, quashed and set aside the order passed by this Tribunal in said WPCT 74/2016 vide order dated 08.02.2019. It is appropriate to refer the observation and directions as mentioned by Hon'ble High Court in para 16, 17, 18 & 19 of the said order dated 08.02.2019 which read as under:-
"16, _It appears that while admitting the writ petition on April OI, 2016, a coordinate Bench had stayed the order passed by the tribunal on November 16, 2015 during its pendency. Upon hearing the parties, we have ne hesitation in our mind that the order impugned dated November 16, 2015 has been passed by the tribunal in excess of its jurisdiction to punish for contempt and, therefore, cannot be sustained in law. L7, Law _is well-settled that while hearing an_action for contempt, the tribunal's scrutiny ought to be confined to ascertain whether its order has been willfully disobeyed: if ves, if ought to ensure proper compliance of the order alleged to have been disobeyed. If an order has been passed by the tribunal for consideration of the claim of an applicant before it and an order has been passed thereafter rejecting the claim, the element of willful disobedience may not exist and it is normally not open to the tribunal, in exercise of its contempt jurisdiction, to examine its validity as if it were a court of judicial review.
18. As has been held in J.S. Parihar (supra), the order may he right, the order may be wrong; the order may not have been passed in strict conformity with the directions. However, a pronouncement as to whether the order is sustainable in law cannot be made except in exercise of the power of judicial review. In that view of the matter, we are inclined to hold that the tribunal upon receiving the action for contempt ought to have disposed of the same on August 29, 2014 itself with 4p oO 36 liberty to the respondent no. I to pursue his remedy in accordance with law. Unfortunately, the tribunal examined the merits of the order and recorded a conclusion that its previous order had not been complied with in true letter and spirit and also that the railway officers were guilty of contempt, After the composition of the tribunal changed, the impugned order dated November 16, 2015 was passed and the members comprising the tribunal went a step further and made an order for appointment of the respondent no.1, which was not even contemplated by the tribunal when it first disposed of the original application of the respondent no.1 by the order dated August 29, 2013.
19, SudhirVasudeva (supra) has reiterated the settled principle of law that while disposing of a contempt application, no order can be passed by the court or the tribunal, which in effect_adds to, subtracts or alters the order of which contempt is allesed, In that view of the matter, we have no hesitation to hold that the order impugned dated November 16, 2015 is in the teeth of the decision in SudhirVasudeva (supra) and being one passed in excess of jurisdiction, the same cannot be sustained in law. It is set aside."
(Emphasis supplied) At this stage, it is also apt to mention that, after recording the aforesaid findings in first part of order dated 08.02.2019, the Hon'ble High Court in second part of the said order, taking note of the "act that the competent authority, under the Scheme of 2010, had granted age relaxation to other identical land losers, had issued further directions upon the respondents to the effect that (i) applicants therein be intimated which are the documents required to be submitted by them and (ii) on receipt of it consider their claim for employment assistance under the land losers' Scheme by giving age relaxation of within the stipulated time.
3723. Aforesaid order dated 08.02.2019 in WPCT No. 74/2016 passed by Hon'ble High Court, was challenged by the Railway authorities befo-e the Hon'ble Apex Court and the said SLP (C) No. 22984/2019 came to be dismissed on 26.08.2019. It can be seen that the Hon'ble High Court in aforesaid order he_d in categorical terms that the Tribunal cannot exceed its jurisdiction in contempt proceeding to issue additional direction other than the order passed in the O.A.
24. At this stage it is useful to refer the exposition in Director of Education Vs. Ved Prakash Joshi reported in (2005)6 SCC 98 and dictum laid down in K.G. Derasari Vs. Union of India reported in (2001)10 SCC 496, wherein Hon'ble Apex Court held that "in exercising the contempt jurisdiction, the primary concern must be whether the acts of commission or omission can be said to be contumacious conduct of the party who is alleged to have committed default in complying with the directions given in the judgment and order of the court. Further, the court ought not to take upon itself power to decide the original proceedings in a manner not dealt with by the court passing the judgment and order. It is also not open to go into the correctness or otherwise of the erder or give additional directions or delete any direction, which course could be adopted only in review jurisdiction and not contempt proceedings."
25. Therefore in exercising contempt jurisdiction, it is not open for this Tribunal to go into <he correctness or otherwise of the order or give if 38 additional directions or delete any direction, which course could be adopted only in review jurisdiction.
In view of the aforesaid discussion, during the pendency of the contempt petition, the prayer sought by the original applicants in M.A187/2022 in CPC 187/2016 for issuance of the additional direction to appoint them without there being any Physical Efficiency Test, is not tenable, At this stage, it is apt to mention that separate O.A.s (such as
0.A./495/2022 and other bunch of O.A.s) came to be filed by some of the applicants herein challenging the legality and validity of call letters issued by the respondents for Physical Efficiency Test (PET) and the same are pending before this Tribunal for final adjudication.
26. It is brought to the knowledge of this Tribunal that against the order passed by this Tribunal dated 27.09.2022 in the present group of Contempt Petitions (supra), the Union of India for the railway authorities filed Writ Petitions i.e.W.P.C.T.No.105/2022 with other analogous Writ Petitions before the Hon'ble High Court at Calcutta. The said Writ Petitions came to be dismissed vide order dated 23.11.2022, wherein the Hon'ble High Court by referring the provisions of Rule 13 of the Contempt of Courts (CAT) Rules, 1992 and taking into consideration the submission of the Writ Petitioner held as under:-
"The contention of the Writ Petitioner in the instant Writ Petition is restricted to an observation of the Tribunal in Paragraph 9 of the impugned judgment as according to the petitioner, the physical efficiency test ts mandatory and inevitable and, therefore, nobody gh?
39 can escape therefrom. The petitioner/Union of India perceives such observation to be sacrosanct and if allowed to stand, would cause a chaotic situation throughout the countries wherein identical issues are involved.
We are unable to accept the aforesaid submission and the stand of Union of India, more particularly, upon noticing the provisions contained in Rule 13 of the said Rules. The aforesaid rules contemplates two situations, firstly after the notice is issued and the alleged contemnors appear and tender unconditional apology, the Tribunal may pass an appropriate order in this regard; secondly, in the event, the respondents do not admit to have committed contempt the Tribunal after being satisfied that there has been prima facie material may proceed to frame the charges in prescribed manner. The expression 'prima facie' appearing in the aforesaid rules connotes that the findings made in an order for framing the charge is prima facie finding of the Tribunal and, therefore, is mere tentative. No conclusiveness can be attached to it as after framing the charges, the further modalities and procedure are provided where the alleged contemnor shall get adequate opportunity to defend. Mere prima facie observation does not confer any right into a person to challenge the order as the said prima facie finding affects right.
Nay muy GR ES) Penny th, We are not unmindful of the proposition that while recording prima facie finding, the court should not record reasons in such manner which could be construed as final yet do not find any difficulty when the statutory provision is laudable that any such finding is prima facie in nature and to be construed to have been made in pursuit of framing the charges in the prescribed format. On the basis of above, we do not feel that the instant writ petition can be maintainable against such finding. ....:.0.0e0000s "
Further it has been brought to the knowledge of this Tribunal that the aforesaid order passed by the Hon'ble High Court has not been interfered with by the Hon'ble Apex Court in the SLP filed by the yy"
respondents.
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40 Therefore, in our considered view, the findings as recorded by this Tribunal in order dated 27.09.2022 in the present group of CPs cannot be construed as final and the same was "tentative' in nature only. Final order:
27, In view of what has been observed and discussed above, we are of the considered view that the submission of learned counsel for the applicants that as per the finding recorded by this Tribunal in order dated 27.09.2022, the respondents are amenable to the contempt jurisdiction of this Tribunal for being punished as a contemnors, cannot be countenanced and is not tenable,
27.1. At the same time, it is noted that, the Hon'ble High Court and this Tribunal, as noted herein above, issued various directions for remedying the things, more particularly, taking into consideration the genuine inability of the respondents such as, change in the policy and to apply the terms and conditions stipulated for direct recruitment quota in the case of the applicants and in turn the respondents have also followed the said directions, time and again. Under the circumstances, it cannot be said that the respondents have intentionally or willfully disobeyed or violated the directions issued by this Tribunal. Accordingly, we are of the view that the ratio laid down by the Hon'ble Apex Court and High court in the judgment as relied on by the Ld. Counsel for the applicants is not applicable to the facts and circumstance of the present case.
qe 41 28, At this stage, we respectfully refer the law laid down by Hon'ble Apex Court in the case ofRam Kishan Vs. Tarun Bajaj reported in (2014) 16 SCC 204, wherein it has been held that:
29.
"12, Thus, in order to punish contemnor, it has to be established that disobedience of the order is "willful'. The word "willful"
introduces mental element and hence, requires looking into the mind of a person/contemnor by gauging his actions, which is an indication of one's state of mind. "Willful" means knowingly, intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bonafide or unintentional acts or genuine inability. Willful acts does not encompass involuntary or negligent actions. The act has to be done with a "bad purpose or without justifiable excuse or stubbornly, obstinately or perversely. Willful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. {¢ does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished. Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct."
In the case on hand, as discussed herein above, the respondents in their compliance report as well as in written notes dated 22/23.12.2022 have explained the compliance of the directions issued by this Tribunal. Further, it is noticed that all the applicants had been served with call letters for document verification and they participated in the said process.
om ¢ '.
42Thereafter, as noted herein above, the respondents have issued call letters for physical efficiency test in the wake of selection process, which was ordered to be hold by this Tribunal and subsequently as per the additional direction issued by this tribunal and the High court, the recruitment process was permitted to be continued subject to final outcome in pending the OA. Under the circumstances, it cannot be said that the respondents have been intentionally delaying the process for consideration of the applications of the applicants.
29.1. Undisputedly, the respondents have processed the case of the candidates as per the direction issued by the High court as well as by this Tribunal and as per the medical category/fitness certificate of the applicants, he/she has- been offered employment by the respondents.
It is also not in dispute that the competent authority in terms of the RBE 99/2010 has granted permissible relaxation to the applicants and as such processed their applications and thereby has substantially complied with the directions brought for compliance under the contempt jurisdiction.
30. In view of the above, we accept unconditional apology tendered by the respondents for delay caused in the process and are also in agreement with the submission of Ld. Counsel for the respondents that there was no willful intention on the part of respondents in delaying the compliance of the order passed by this Tribunal. As noted above and even not disputed by the applicants, as per the direction of Hon'ble High Court as well as that of this Tribunal, the respondents are continuing the processing of the case of the applicants for grart of employment assistance and in such process, even a 43 some of the applicants who failed in PET, were further sent for medical examination to process their case for employment assistance.
Thus, it cannot be said that the respondents are sitting tight. On the contrary, the facts unfurled as above would clearly suggest that the respondents were working enough to comply with the directions brought under the contempt jurisdiction. Though, there has been delay in the complying with the directions, sufficient genuine inability and the cause has been shown which were beyond the control of the respondents.
31. Taking into consideration aforesaid factual matrix in its entirety, this Tribunal is satisfied that the respondents have sufficiently complied with the direction issued by this Tribunal 26.12.2015 and 16.03.2020. Further, we are satisfied that it is not expedient to proceed further in the present group of CPs. Accordingly, in terms of the provision of Rule 13 (b) (ii) of the Contempt of Courts (C.A.T) Rules, 1992, we drop the proceedings and discharge the respondents.
Accomm all the C.P.s stand dropped. M.A.s, ifany, dismissed.
an é Zi | : we .
(Suchitto amar Das ) (Jayesh V. Bhairavia) Administrative Member Judicial Member Sb/uj/ss